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2012 DIGILAW 231 (ORI)

MEERA DAS v. DILLIP KUMAR SAMANTARAY

2012-05-04

V.GOPALA GOWDA

body2012
JUDGMENT : V. Gopala Gowda, J. Aggrieved by the judgment dated 7.4.2003 passed by the Second Motor Accidents Claims Tribunal, Cuttack in Misc. Case No. 535 of 1998, the claimant has filed the present appeal seeking for setting aside the impugned judgment and allowing the same by awarding just and reasonable compensation, urging various facts and grounds in support of the appeal. The brief facts are stated for the purpose of appreciating rival legal contentions urged on behalf of the parties with a view to find out as to whether the claimant is entitled to the reliefs sought for in this appeal. 2. On 14.12.1997 at about 10.30 p.m. in front of Bagha Mangala Temple near Mangalabag, while the husband of the appellant was a pedestrian in the extreme left side of the road, at that time, a Hero Honda motor cycle bearing registration No. OR 07-A 1229, which was coming from Mangalabag side to Ranihat, being plied in a rash and negligent manner and also in high speed without obeying the traffic rules and regulations, dashed against the husband of the appellant after dashing a scooter which was in a standstill position. As a result, the husband of appellant fell on the pitch road and sustained grievous head injury. He was immediately shifted to the S.C.B.M.C.H., Cuttack, where he died while undergoing treatment. The post-mortem was conducted by the F.M.T. Department of S.C.B.M.C.H., Cuttack. The report is produced and marked as Exh. 3. Since the deceased died in a motor vehicle accident, the wife filed claim petition before the Claims Tribunal u/s 166 of Motor Vehicles Act, 1988 claiming compensation of Rs. 7,50,000 stating that the deceased was a contractor and was earning a sum of Rs. 10,000 to Rs. 15,000 per month. 3. On behalf of the claimant two witnesses were examined. The Tribunal on appreciation of pleadings and the evidence on record passed the impugned judgment dated 7.4.2003 awarding compensation at Rs. 2,40,000 assessing the monthly contribution of the deceased towards family maintenance at Rs. 4,000 applying 5 multiplier. Correctness of the same is under challenge in this appeal aggrieved by the inadequate compensation awarded, urging following grounds. 4. It is contended that the compensation awarded is very meager. 2,40,000 assessing the monthly contribution of the deceased towards family maintenance at Rs. 4,000 applying 5 multiplier. Correctness of the same is under challenge in this appeal aggrieved by the inadequate compensation awarded, urging following grounds. 4. It is contended that the compensation awarded is very meager. The evidence regarding annual income has not been taken into consideration by the Tribunal even though the income tax deduction certificate for the year 1997-98 issued by the Executive Engineer, Fishery Engineering Division, Bhubaneswar shows deduction of tax of Rs. 57,561 into the Central Government Account towards total turnover of the income at Rs. 23,72,785 in respect of different bills of the year 1996-97. The TDS of the year 1996-97 has been marked as Exh. 8. Deceased had deducted at the rate of 2 per cent, i.e., Rs. 57,561 towards income. This material evidence on record should have been taken into consideration for the purpose of determining the loss of dependency to award just and reasonable compensation. Therefore, it is submitted that such material evidence on record is required to be considered and awarded just and reasonable compensation. 5. The claim is opposed by Mr. Bijoy Das Mohapatra, learned counsel appearing for the insurance company, inter alia, contending that Tribunal being a fact-finding authority, on appreciation of the pleadings and the evidence on record, particularly the evidence of appellant herself who has stated that the income of the deceased was between Rs. 10,000 and Rs. 15,000 per month, has awarded just and reasonable compensation. Non-production of the income tax return for the previous financial year, i.e., 1996-97, the claim made u/s 44-AD of the Income Tax Act, 1961 on the basis of Exh. 8, is not available to the claimant. It is further stated that placing reliance on the TDS for the year 1997-98 which was obtained after the death of the deceased and was not proved by examining the proper person, the claim made is not sustainable. Mr. Mohapatra placed reliance upon section 44-AD of the Income Tax Act in support of his contention. He submitted that the compensation awarded by the Tribunal on the basis of the legal evidence is perfectly legal and valid which does not call for interference of this court. 6. With reference to the aforesaid rival legal contentions, the following points arise for consideration of this court. (i) Whether non-consideration of Exh. He submitted that the compensation awarded by the Tribunal on the basis of the legal evidence is perfectly legal and valid which does not call for interference of this court. 6. With reference to the aforesaid rival legal contentions, the following points arise for consideration of this court. (i) Whether non-consideration of Exh. 8 and assessing the monthly contribution of the deceased towards family maintenance at Rs. 4,000 applying 5 multiplier for determining the loss of dependency is legal and valid? (ii) Whether the compensation awarded at Rs. 2,40,000 is just and reasonable? (iii) What award? 7. All the points are interrelated with each other. 8. It is an undisputed fact that deceased died in a motor vehicle accident on account of the rash and negligent driving of Hero Honda motor cycle on the fateful day, i.e., 14.12.1997. He sustained grievous injuries on account of the accident. He was taken to S.C.B.M.C.H., Cuttack where he died while undergoing treatment. Post-mortem is conducted and Exh. 3 is the post-mortem report. Tribunal has recorded the finding of fact on the contentious issue No. 1 that whether due to rash and negligent driving of the offending vehicle the accident took place on the fateful day which was answered in favour of the claimant. The said finding is not rebutted either by the insured or insurance company. Having answered the said finding in favour of the claimant, the Tribunal has assessed the monthly contribution of the deceased towards family maintenance at Rs. 4,000 applying 5 multiplier though there is evidence as per Exh. 8, the income tax deduction certificate for the year 1997-98 issued by the Executive Engineer, Fishery Engineering Division, Bhubaneswar, showing the deduction of tax of Rs. 57,561 into the Central Government Account towards total turnover of the income at Rs. 23,72,785 in respect of different bills of the year 1996-97 u/s 44-AD of the Income Tax Act. Exh. 8 discloses that deceased was a contractor and he had submitted bills in respect of different works executed by him. It is a fact that the said document was not proved through the Executive Engineer or any other person who is well versed with the contents of the document though the Tribunal is a fact-finding authority. Nonetheless the said document is not disputed and it is a public document. It is a fact that the said document was not proved through the Executive Engineer or any other person who is well versed with the contents of the document though the Tribunal is a fact-finding authority. Nonetheless the said document is not disputed and it is a public document. Non-examination of either the Executive Engineer or a person well versed with the content of the document, cannot throw the claim of appellant. None was examined either on behalf of the insured or on behalf of the insurer availing permission u/s 170(b) of the Motor Vehicles Act, 1988 to show that the deceased was not a contractor and Exh. 8 is a fabricated document. In the absence of rebuttable evidence, the fact that deceased was a contractor is not disputed and the contents of Exh. 8 cannot be put against the appellant in a case of this nature having regard to the fact that the document is a public document which is maintained by the Executive Engineer. Therefore, this court is of the opinion that non-consideration of the said document is fatal to the case which rendered injustice to the claimant. Hence it would be just and proper for this court to take the said document into consideration. Mr. Mohapatra, learned counsel appearing for the insurance company, has rightly pointed out that section 44-AD of the Income Tax Act cannot be taken for the purpose of 2 per cent profit out of the sum of Rs. 23,72,785 for the reason that for the previous year no return was submitted. Perusal of the impugned order reveals that the monthly income of the deceased was between Rs. 10,000 and Rs. 15,000, as stated by the claimant. Therefore, this court can safely take the monthly income of the deceased at Rs. 15,000. Taking the monthly income of the deceased at Rs. 15,000, his annual income would be Rs. 1,80,000. After 1/3rd deduction therefrom, it would come to Rs. 1,20,000. In view of the decision of the Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, AIR 2009 SC 3104 , applying 9 multiplier, the amount would come to Rs. 10,80,000. Under conventional heads, such as loss of love and affection, funeral expenses and loss to estate, adding Rs. 40,000, the amount comes to Rs. 11,20,000. The said amount of Rs. Delhi Transport Corporation and Another, AIR 2009 SC 3104 , applying 9 multiplier, the amount would come to Rs. 10,80,000. Under conventional heads, such as loss of love and affection, funeral expenses and loss to estate, adding Rs. 40,000, the amount comes to Rs. 11,20,000. The said amount of Rs. 11,20,000 would be the just and reasonable compensation keeping in view the fact that the deceased was a contractor. The insurance company is, therefore, directed to pay Rs. 11,20,000 with 6 per cent interest from the date of filing of the claim petition till payment within four weeks from the date of receipt of this order. The appeal is accordingly allowed. 9. Though this matter was disposed of on 20.4.2012, it was listed today, i.e., 4.5.2012, under the heading 'To Be Mentioned' and is taken up for the reason that deduction has to be made towards income tax applying the decision of the Supreme Court in the case of Shyamwati Sharma and Others Vs. Karam Singh and Others, (2010) 12 SCC 378 but to that effect no order was passed in the present case on 20.4.2012. Therefore, after hearing learned counsel for appellant and the insurer, applying the decision of the Supreme Court in the case of Shyamwati Sharma (supra), deducting 10 per cent towards the income tax to determine the loss of dependency and enhancing the amount under the conventional head, modifying the operative portion of the earlier order dated 20.4.2012 passed in this appeal in respect of loss of dependency and conventional head, the following order is passed. 10. Taking the monthly income of the deceased at Rs. 15,000, his annual income would be Rs. 1,80,000. After 1/3rd deduction therefrom, it would come to Rs. 1,20,000. Applying the decision of the Apex Court in the case of Shyamwati Sharma and Others Vs. Karam Singh and Others, deducting 10 per cent towards income tax, it would come to Rs. 1,08,000. In view of the decision of the Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, AIR 2009 SC 3104 , applying 9 multiplier, the amount would come to Rs. 9,72,000. Under conventional heads, such as loss of love and affection, funeral expenses and loss to estate, adding Rs. 50,000 instead of Rs. 40,000, the resultant figure of just and reasonable compensation would be Rs. Delhi Transport Corporation and Another, AIR 2009 SC 3104 , applying 9 multiplier, the amount would come to Rs. 9,72,000. Under conventional heads, such as loss of love and affection, funeral expenses and loss to estate, adding Rs. 50,000 instead of Rs. 40,000, the resultant figure of just and reasonable compensation would be Rs. 10,22,000 keeping in view the fact that the deceased was a contractor. The rate of interest as directed is not disturbed. The insurance company is directed to pay Rs. 10,22,000 with 6 per cent interest from the date of filing of the claim petition till payment which shall be made within four weeks from the date of receipt of this order. The appeal is accordingly allowed modifying the order dated 20.4.2012 to the extent indicated.